I have not written before about my role as chair of the Law Society’s Policy and Regulatory Affairs Committee (PRAC). Indeed, there is a disclaimer under each article saying ‘All views expressed are personal and are not made in [my] capacity as a Law Society Council member, nor on behalf of the Law Society’. I take this seriously.
But I feel that a vow of silence sometimes does a disservice to the Law Society, since, in my role as chair, I am in a unique position to understand the breadth and strength of the Law Society’s policy work. If I don’t communicate about it at least sometimes, an essential element of the Law Society’s value to the profession may go unsung.
The government issues very frequent consultations in the field of law and practice, ranging from the general and well-known to the esoteric and little practised. On nearly each occasion, there is a group of solicitors affected who would like their views represented. Of course, the Law Society has to choose. It doesn’t have infinite resources, nor does it have the expertise to cover every possible field of law. It has a corporate strategy, with resources allocated in advance to agreed objectives. It cannot veer off course at the drop of every consultation. But even within these parameters, there is a broad range covered.
In order to deal with the approvals procedure for Law Society responses, there is a traffic light policy. ‘Green’ applies when there is no new policy involved and a positive or low negative impact arising from the consultation: a senior staff member can sign off on the response. There is an ‘amber’ label when there is an unclear or moderate negative impact arising from the consultation, or a moderate change of policy; this requires sign off from the same senior staff member plus the chair of PRAC. And the ‘red’ label will apply where there is a change of policy, or there is likely to be a significant negative impact; this will require sign off from all of PRAC. Of course, there are some – like the recent SRA business plan consultation and fee hike – which are so important that the response goes not only to PRAC but involves the higher decision-making bodies, too.
I, as PRAC chair, am sandwiched between red and green, at the amber point. How can anyone carry out a task which requires approving consultations over such a broad range of practice areas? A look at the list of Law Society member advisory committees shows that they cover the full range: family, tax, criminal, company, property, intellectual property, technology and more. A City lawyer as PRAC chair would likely know nothing about the intricacies of legal aid, which makes up a significant number of responses. A legal aid lawyer would likely know nothing about the international and commercial side.
No one knows it all, least of all me. But a grounding in the main policy areas of lawyer confidentiality and other ethical principles, independence of the profession, access to justice, the rule of law and the general interest of the profession is a good start – plus plain common sense.
Two recent examples of amber responses come to mind. Back in March, the government issued a consultation on opportunities to extend uncertain tax treatment. Maybe readers of the Gazette do nothing but speak of the existing Notification of Uncertain Tax Treatment by Large Businesses regime (UTT), but, if so, I am not a typical reader. One of the main proposals of the consultation was to include stamp duty land tax, national insurance contributions, the Construction Industry Scheme, capital gains tax and inheritance tax within the scope of UTT, and also to add a new trigger for notification of legal interpretation uncertainties to HMRC. My role was to take an overview from the perspective of the profession, its core values and interests.
Or there was the more recent consultation on changes to legal aid fee schemes for inquests, another niche area. This arises out of the Public Office (Accountability) Bill – the Hillsborough Law – which, among other things, aims to ensure that all bereaved families will be able to access publicly funded legal help and advocacy at inquests where a public authority has been named as an interested person.
The Law Society’s response made interesting points: demand for inquest legal aid is set to surge, with cases expected to rise from a few hundred each year to around 11,000, creating an urgent need for significant expansion in provider capacity, but the proposed rates are too low to be sustainable and will fail to attract new legal aid providers or enable existing providers to expand to meet demand.
Responses like these on such a wide range of areas are possible only because of experienced staff supported by experienced members of the profession practising in the area. You, too, can get involved with the Law Society’s work.
Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society
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